Rather, according to Stevens, he has remained about where he always was while newer and younger appointees have pushed the court to the right.

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who will turn 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades — Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter, Warren Burger and Lewis Powell — Stevens has become markedly more liberal during his years on the court.

Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never — or, at least not yet — made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.

What explains the asymmetry in justices’ evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.

Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.

Examples:

Race. Stevens sided with conservatives in the court’s first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove v. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.

"Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," Stevens wrote. He added in an acidic footnote that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany’s detailed definition of a Jew. But since the mid-1980s, Stevens has taken positions contrary to both of those early opinions while supporting every racially preferential program to come before the court.

Death penalty. In 1976, six months after his appointment and four years after the court had struck down every death penalty law in the country, Stevens took a center-right stand on one of the hottest issues facing the nation by writing one of the opinions that reinstated capital punishment. The 1976 decisions included procedural requirements designed to make imposition of the penalty less arbitrary and more fair. But over the years, Stevens became convinced that the safeguards have not worked and the death penalty would never be fair. Finally, in a 2008 opinion, he suggested for himself alone that all death penalty laws should be struck down for good.

Defendants’ rights. Stevens has said in interviews that his father’s apparently unwarranted embezzlement conviction taught him that the criminal justice system could lead to great injustices. But "examining Stevens’ first full year on the court nevertheless reveals a justice who often appears unsympathetic to criminal defendants’ rights," according to "

Examples:

Race. Stevens sided with conservatives in the court’s first big cases involving racial affirmative action preferences in admissions and federal contracting. In the 1978 Bakke decision, Stevens wrote a dissent joined by his three most conservative colleagues arguing that the 1964 Civil Rights Act barred state universities from giving race-based preferences to minorities. And his 1980 dissent in Fullilove v. Klutznick argued for striking down a federal law requiring racial quotas in federal contracting.

"Preferences based on characteristics acquired at birth foster intolerance and antagonism against the entire membership of the favored classes," Stevens wrote. He added in an acidic footnote that any "serious effort to define racial classes by criteria that can be administered objectively" must look to precedents such as Nazi Germany’s detailed definition of a Jew. But since the mid-1980s, Stevens has taken positions contrary to both of those early opinions while supporting every racially preferential program to come before the court.

Death penalty. In 1976, six months after his appointment and four years after the court had struck down every death penalty law in the country, Stevens took a center-right stand on one of the hottest issues facing the nation by writing one of the opinions that reinstated capital punishment. The 1976 decisions included procedural requirements designed to make imposition of the penalty less arbitrary and more fair. But over the years, Stevens became convinced that the safeguards have not worked and the death penalty would never be fair. Finally, in a 2008 opinion, he suggested for himself alone that all death penalty laws should be struck down for good.

Defendants’ rights. Stevens has said in interviews that his father’s apparently unwarranted embezzlement conviction taught him that the criminal justice system could lead to great injustices. But "examining Stevens’ first full year on the court nevertheless reveals a justice who often appears unsympathetic to criminal defendants’ rights," according to "The Stevens Myth," a recent New Republic piece by Justin Driver, an assistant professor at the University of Texas Law School.

"Stevens wrote a dissent in Doyle v. Ohio contending that it should be constitutional for a prosecutor to cross-examine a defendant regarding his failure to offer an exculpatory story immediately after being arrested and receiving Miranda warnings," Driver observes. "… Today, in stark contrast, Stevens views Miranda as sacrosanct."

Freedom of speech. The early Stevens was seen as no friend of broad free speech rights, then — though not so much now — a liberal article of faith. He wrote a plurality opinion in a 5-4 decision in 1976 upholding local zoning laws limiting where adult (but not obscene) films could be shown. Two years later, he ruled for the court, over a liberal dissent, that the Federal Communications Commission could penalize a radio station for airing George Carlin‘s "Filthy Words" monologue. But in recent decades Stevens has usually joined liberals in free speech cases.

Medicaid abortions. In 1977, Stevens joined a majority ruling that states may constitutionally deny Medicaid funding for abortions that did not qualify as "medically necessary." William Brennan, Thurgood Marshall and Blackmun dissented. Since then, Stevens has been a reliable supporter of abortion rights.

Stevens’ evolution resembles Blackmun’s more dramatic movement from fairly consistent conservative after President Nixon appointed him in 1970 to becoming the most liberal justice when he retired in 1994. (The even more liberal William Brennan and Thurgood Marshall had retired in 1990 and 1991, respectively.)

Blackmun was known above all as a passionate champion of abortion rights since he wrote Roe v. Wade in 1973. That decision seemed less controversial when issued than it was to become; indeed, Stevens was not asked a single question about abortion during his brief 1975 confirmation hearing. Over the next decade, Blackmun had also become passionately liberal on racial preferences, gay rights, the death penalty, defendants’ rights, religion and most or all other big issues.

O’Connor’s leftward evolution — from moderate conservative in the first few years after President Reagan named her in 1981 to moderate liberal by the time she retired in 2005 — was less dramatic but unmistakable.

Her early abortion opinions, for example, led many experts to predict that she would vote to overrule Roe v. Wade. She also voted against constitutional protection of homosexual conduct in 1986 and sided through 1995 with conservatives on racial preferences, warning in a 1989 plurality opinion that they may "promote notions of racial inferiority and lead to a politics of racial hostility."

But in 1992, O’Connor cast a crucial vote — as did Souter and the Reagan-appointed Anthony Kennedy — that joined liberals (including Blackmun and Stevens) in reaffirming the basic abortion right declared in Roe. While O’Connor, Souter and Kennedy trimmed abortion rights around the edges over liberal protests, they left U.S. abortion law more liberal than that of any nation in Europe.

And in 2003, O’Connor voted with Souter, Stevens, Kennedy, and Clinton-appointed Justices Ruth Bader Ginsburg and Stephen Breyer to strike down a Texas prosecution for homosexual sodomy as unconstitutional. That year she also wrote a major 5-4 decision — joined by Stevens, Souter, and the two Clinton appointees (but not Kennedy) — upholding the University of Michigan Law School’s very large racial preferences in admissions. The law school would, for example, almost always admit a black or Hispanic applicant with a B average ahead of an otherwise similarly qualified Asian or white student with an A average.

Stevens and the other more liberal justices have sometimes gotten a fifth vote from Kennedy, who since shortly after his 1988 appointment has been center-right on some issues and center-left on others. This posture has enabled Kennedy in recent years — much like O’Connor from about 1990 to 2005 — to be the pivotal vote determining whether liberals or conservatives would win. But unlike O’Connor, Stevens and Blackmun, Kennedy has been fairly consistent over time.

One reason why so many Republican appointees have turned out to be more liberal than the presidents who picked them has been the difficulty of getting nominees with conservative paper trails through the Senate. Reagan chose Kennedy, whose record as an appellate judge was fairly centrist, only after the Senate had rejected the far more conservative Robert Bork by 58-42. The first President Bush chose Souter, a so-called stealth nominee, because his views were so unknown that there was little for Democrats to attack. He soon proved to be fairly liberal.

Blackmun and O’Connor as well as Stevens, on the other hand, clearly "evolved," as liberal journalists and academics have said approvingly. Their ideological drift has to some extent mirrored the direction of general public opinion, such as diminishing bias against gay people. But the public has never moved sharply to the left — as has Stevens and as did O’Connor and Blackmun — on abortion rights, racial preferences or church-state issues such as school prayer.

While many liberals see this trend as a case of acquiring wisdom on the job, conservative critics including Justices Clarence Thomas and Antonin Scalia have claimed that their more liberal Republican-appointed colleagues have been moved neither by wisdom, nor by legal principle, nor by general public opinion, but by the leftward march of the intellectual elite, especially in the media and academia.

While I would not dismiss the liberal view, the conservative critique seems more plausible. Indeed, it would be only human, as I wrote in a 2003 column, for justices who arrive without settled ideological convictions to evolve in a liberal direction.

The justices’ reputations are determined in large part by mostly liberal news reporters, commentators and law professors and by liberal feminist, civil rights and professional interest groups such as the American Bar Association. Newly appointed justices who vote conservative are often portrayed as uncompassionate right-wing ideologues. Those who move leftward win praise for enlightenment. ("I ain’t evolving," the aggressively conservative Thomas has reportedly told clerks.) And the bright young law clerks — the justices’ closest professional collaborators — tend to come from elite law schools where conservative professors are rare birds and general public opinion is widely seen as benighted.

As a conflicted moderate with (for example) a center-left sympathy for gay rights and a center-right discomfort with large racial and gender preferences, I myself am more happy with the court’s direction than I would be had Stevens, Blackmun, O’Connor, Souter and Kennedy all been as conservative as Scalia, Thomas, Samuel Alito, Chief Justice John Roberts and the late Chief Justice William Rehnquist. Or vice versa.

I am also concerned that the balance may have tipped too far to the right when Alito replaced O’Connor in 2006, making possible such aggressively conservative (and in my view unwise) decisions as the 5-4 ruling in January striking down the 63-year-old federal ban on independent campaign spending by business (and other) corporations and unions.

But don’t believe people who portray the court’s handiwork in recent decades as moving to the right of the mainstream of general public opinion, and as moving dramatically to the right of the pre-Reagan court.

Tracking How Justices Were Perceived When Nominated

The graph presents historical data from a database compiled by Northwestern law professor Lee Epstein and her colleagues. It’s an analysis of Segal-Cover scores dating back to 1937.

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But a far more important imprisonment story gets less attention because it’s a running sore that rarely generates dramatic "news." That is our criminal-justice system’s incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.

Forty percent of these prisoners are black, 20 percent are Hispanic, and most are poor and uneducated. This has had a devastating impact on poor black families and neighborhoods, where it has become the norm for young men — many of them fathers — to spend time in prison and emerge bitter, unemployable, and unmarriageable. (These numbers come from studies cited by Marc Mauer, executive director of the Sentencing Project, a reform group.)

America imprisons seven times as many people as it did in 1972, several times as many per capita as other Western nations, and many more than any other nation in the world.

Yes, violent criminals should be locked up for long enough to protect the rest of us. But the mass, long-term imprisonment of nonviolent, nondangerous offenders in recent decades and excessive terms for others has made us no safer while ruining countless lives and converting potentially productive citizens into career criminals.

The 13-year-old rapist and the 17-year-old serial robber-burglar who are serving life without parole in two Florida cases inspired impassioned comments from justices with opposing views. But the outcome may not have much impact on these two prisoners or anyone else. Even if the Court strikes down their sentences, the state will be free to resentence them to serve, say, 40 years before being eligible for parole, and thereafter to deny successive parole applications until they die. And even if the Court upholds life without parole, the state will be free in the future to relent and release them.

Meanwhile, the damage done by America’s prison binge over the past 30 to 40 years dwarfs the importance of all of the Court’s pending criminal cases.

The damage done by America’s prison binge over the past 30 to 40 years dwarfs the importance of all of the Court’s pending criminal cases.

To be sure, budget problems in recent years have forced some states to hold down their prison populations by relaxing drug sentences. And California is under federal court order to release 40,000 people from its badly overcrowded prisons. Perhaps the budgetary pressure will open more minds to the impressive body of research suggesting that imposing severe prison terms on more and more people is not the best way to fight crime.

Another glimmer of hope is that a bipartisan group of senators, with Obama administration support, is working to ratchet down the overpunishment of mostly nonviolent crack cocaine offenders, 80 percent of whom are black. Tens of thousands are now locked up under grotesquely excessive federal mandatory minimum sentences of five years (for simple possession of 5 grams of crack), 10 years (50 grams with intent to distribute), and more.

But the crack penalties are just the tip of an overpunishment iceberg. And although it’s not growing as fast as before, it’s not shrinking either. "What we’re seeing so far is just a slowing of growth — a tinkering around the edges," Mauer says.

At a cost of $60 billion a year, our prisons and jails do very little to counsel, educate, train, or otherwise prepare prisoners to get jobs and go straight after they’re released. They are barred from public housing, treated as outcasts by many employers, and often surrounded by other ex-cons in their neighborhoods. This makes for very high recidivism, with about two-thirds of those released being rearrested within three years.

The impact on black communities is especially dramatic.

• Blacks are imprisoned at a rate eight times as high as whites.

• Nearly 60 percent of black male high school dropouts, and nearly 30 percent of all black men (if current trends continue), will spend time behind bars — far more than in the worst days of segregation. The result: "In America’s inner cities, incarceration has become the more-likely-than-not norm, not the unthinkable exception," Georgetown University Law School’s David Cole recently wrote in The New York Review of Books.

• The number of drug prisoners increased elevenfold from 1980 to 1997, and the number of black drug prisoners more than quadrupled from 1985 to 1991, according to Cole. Not many of them fit the "drug kingpin" label used by politicians to justify long prison terms.

I don’t attribute these glaring racial disparities to racist animus. Blacks do commit highly disproportionate percentages of violent as well as nonviolent crimes. And some rich white men also get savagely severe prison terms, such as the 25 and 24 years — more than most murderers — imposed on former WorldCom CEO Bernard Ebbers and former Enron executive Jeffrey Skilling, whose appeal is now before the Supreme Court, respectively.

But it’s fair to say that our criminal-justice system is helping to create "a racially defined pariah class in the middle of our great cities," as Brown professor Glenn Loury says in his 2008 book, Race, Incarceration, and American Values.

The prison binge started out as a reaction to crime rates that began soaring in the 1960s, and the federal mandatory minimums were largely a response to the inner-city crack wars of the 1980s. But imprisonment rose more than crime, owing to adoption of draconian mandatory minimum sentences by state legislatures and Congress; restrictions on (and sometimes abolition of) parole; and other "tough on crime" policies.

The nascent countertrend noted above reflects not only budget pressures but also the efforts of reformers such as Sen. Jim Webb, D-Va.; Mauer; Julie Stewart, founder of Families Against Mandatory Minimums; and their counterparts at the state level. Although it has not yet reduced the prison population, there’s room for hope that it might.

How much could we reduce the prison population without turning loose a horde of violent predators? By a lot.

More than 20 states eased some criminal sentences between 2004 and 2006, including New York’s relaxation of its especially harsh Rockefeller drug law. Others have made it easier for well-behaved prisoners to win early release and diverted drug offenders from prisons to treatment programs. At least 19 states have also relaxed their felon disenfranchisement laws — one of the many indignities imposed on ex-prisoners who have served their time — since 1997.

At the federal level, there is an overwhelming policy case for abolishing all of the numerous mandatory minimum sentences that Congress adopted for drug offenses in 1986 and 1988, and relying instead on the common sense of the judges who know the facts of each case and the defendant’s history. Yes, some judges would be too lenient. But federal prosecutors can appeal lenient sentences.

So far, however, most of the Democrats who control Congress seem too worried about opening themselves up to unwarranted Republican attacks for being "soft on crime" to do away with mandatory minimums.

How much could we reduce the prison population without turning a horde of violent predators loose on the rest of us? By a lot.

Experts disagree about how much of the steep plunge in crime rates from about 1994 to 2004 is attributable to locking up so many criminals and how much it owes to demographics. But most of the estimated 1.2 million prisoners locked up for nonviolent offenses are not especially dangerous. Scholars including Mark Kleiman, a professor of public policy at the University of California (Los Angeles), contend that for violent as well as nonviolent offenders, long prison terms — which most potential criminals don’t expect to incur — do less to deter crime than would swifter and surer imposition of less onerous penalties. Even probation, Kleiman writes, can be a real deterrent if accompanied by tough conditions and oversight.

In his recent book, When Brute Force Fails: How to Have Less Crime and Less Punishment, Kleiman argues that the correct reforms would lead to "half as much crime and half as many people behind bars 10 years from now."

"Half as much crime" sounds pretty optimistic, in part because getting our criminal-justice system to do anything swiftly and surely would be a tall order. But reducing the number of people behind bars by several hundred thousand, or even 1 million, seems a reasonable goal.

After all, an incarcerated population of 1.3 million (down from 2.3 million) would still be four times as many — and well over twice as many per capita — as in 1972, when we had 326,000 prisoners.

But budgetary pressures and reformers can move us only so far toward more-sensible sentencing policies unless and until politicians become more enlightened about how best to fight crime.

And we cannot count on much help from the Supreme Court, which in 2003 upheld no-parole sentences, under California’s "three strikes" law, of 50 years for shoplifting $150 worth of children’s videos and 25 years for stealing three golf clubs.

This article appeared in the Saturday, November 14, 2009 edition of National Journal.

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But then, public opinion moved sharply in an unexpected direction. Support for the death penalty soared in the months after the 5-4 decision in Furman v. Georgia. It was 50 percent to 42 percent (an 8-point spread) in March 1972 and 57 percent to 32 percent (a 25-point spread) that November. It kept soaring for two decades, in close sync with crime rates, to a high of 78 percent to 17 percent in the early 1990s. (All numbers are from Gallup polls.)

"Furman, like other landmark cases, had the effect of calling its opponents to action," Stuart Banner wrote in 2002 in The Death Penalty: An American History. One result was the passage of new state death-penalty laws. The justices upheld some of them in 1976 and thereafter because they provided for special hearings to weigh mitigating against aggravating evidence and thus made the process of deciding who dies less capricious (at least in theory). And the number of death sentences pronounced each year by juries rose steadily, to a post-Furman high of 317 in 1996.

But although polls show that about 65 percent of the public still supports capital punishment in the abstract, the number of juries opting for death has plunged, from 317 in 1996 to 128 in 2005, the latest year for which complete data are available. Similarly, the number of executions has dropped from a modern high of 98 in 1999 to 53 in 2006.

At the same time, experts agree, many prosecutors have become more reluctant to seek the death sentence.

And now the Supreme Court has imposed a de facto moratorium on executions while it considers the claims of two Kentucky death-row inmates (Baze v. Rees) and others that the often-botched lethal-injection method used by most states and the federal government may inflict gratuitous pain on condemned prisoners.

The best that death-penalty opponents can hope for in the Kentucky case is a decision requiring states to devise a less error-prone, more pain-free execution procedure. Whatever the outcome, we will probably see a temporary spike in executions after the moratorium ends.

But four factors — more significant than anything that the justices have done or will probably do — seem likely to keep the number of death sentences and executions down in the long run.

•Irrefutable DNA evidence has exonerated some 15 death-row inmates and almost 200 other men convicted of murder or rape, mostly since the late 1990s. This DNA-evidence revolution, along with non-DNA evidence proving the innocence of a great many more condemned men and other prisoners, has alerted many who support the death penalty in principle to the fallibility of the criminal-justice system and the risk of executing innocent people.

•More and more murder defendants have competent trial lawyers, thanks to judicial and legislative decisions requiring more state spending on indigent defense and the work of nonprofits and pro bono lawyers. Few defendants with good trial lawyers get death sentences. And the costs to the state of a well-defended death-penalty trial are often much higher than the costs of imprisoning the defendant for life. All of this has made prosecutors more reluctant to seek death.

•Fewer jurors believe that a death sentence is the only sure way to keep a murderer off the streets. The main reason is that more states — notably including Texas, which leads the nation in executions — have provided life imprisonment without the possibility of parole as an alternative.

(To be sure, a somewhat related reason for the drop in death sentencing — the greatly diminished public fear of crime after the dramatic decline in crime rates between 1994 and 2005 — could prove transitory if the rise in crime rates over the past two years accelerates.)

•Finally, for many centuries people have recoiled against one execution method after another, despite efforts to make them less horrible and less painful. The same seems true now.

Western societies once entertained bloodthirsty crowds with torturous execution methods such as feeding people to lions in the Roman Colosseum and drawing and quartering them. Public executions became progressively less gruesome with the advent of the executioner’s ax, the mechanized guillotine, trapdoor hangings, and firing squads. By the late 19th century, public executions were out of vogue (except for racist mob lynchings) and the supposedly painless electric chair became common. Then came the gas chamber.

And now 36 of the 38 death-penalty states and the federal government have adopted variants of the three-drug lethal-injection cocktail that is before the Supreme Court: first a sedative to put the prisoner asleep; then a paralyzing agent to prevent struggle; then the drug that kills by stopping the heart.

But like all previous methods, the three-drug protocol has often been botched, in ways dramatically detailed by defense briefs in the pending Supreme Court case. This is unsurprising: Not many physicians — indeed, not many people with any kind of marketable skill — aspire to be executioners.

Does this pattern suggest that our raw retributive urges recede as we become more civilized? How many death-penalty supporters would choose to play even the most clinical role in an execution? How many Americans would relish the spectacle of murderers (let alone adulteresses) being publicly stoned to death, as they still are in some of the same societies that spawn barbarian suicide bombers?

On the other hand, what explains the insistence of so many state governments on keeping a hastily devised, demonstrably flawed lethal-injection protocol that may well cause agonizing pain? It would not be difficult to kill prisoners painlessly. A bullet to the back of the head would do. But who would volunteer to pull the trigger? A massive dose of the barbiturates used to put down sick pets would also suffice. But might that seem too dehumanizing? Or, perhaps, less awe-inspiring than an execution should be? Is there a good way to do this? If not, should we be doing it at all?

For these and other reasons, I suspect that the abolitionist justices may have been right in their perception that the death penalty is in tension with the "evolving standards of decency that mark the progress of a maturing society." (Chief Justice Earl Warren originated the line in 1958, in Trop v. Dulles.)

They were wrong, however, to take this perception as a mandate to abolish the death penalty, for at least three reasons.

First, the recent history sketched previously shows that the trend toward less enthusiasm for executions is not linear, and that well-intentioned judicial efforts to speed up the evolution process can backfire.

Second, judicial abolition of the death penalty would usurp powers assigned by the Constitution to the legislative and executive branches. In this sense, Furman had less to do with the progress of a maturing society than with what Justice William Brennan, when breaking in new law clerks, introduced semi-facetiously as "the rule of five."

"You got five votes," he would explain with mock professorial gravity, "you can do anything you want." So you can, for a while. But in the long run, societies mature better when they do it the old-fashioned way, without the help of judicial fiats.

Third, while the justices know a lot about the social costs of the death penalty, they know very little about whether and to what extent these costs may be offset by the very considerable benefit of saving innocent lives.

Pepperdine University professors Roy Adler and Michael Summers, for example, claim in a November 2 Wall Street Journal op-ed that "our recent research shows that each execution carried out is correlated with about 74 fewer murders the following year." If you believed that, wouldn’t you want to see a lot more executions? Indeed, at least in the case of rational criminals, any deterrent effect would presumably increase in tandem with the (now tiny) risk of being executed.

Many more experts argue that the death penalty does not deter crime. And it seems likely that in some contexts — jihadist terrorists who crave martyrdom, for example — more executions might actually bring more murders.

Putting aside such special cases, at this point most of us can only speculate about which side has the better of the inherently conjectural arguments about deterrence. The same is true of the justices. And speculation is not a firm foundation on which to build constitutional law.

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The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners — including 15 who had been sentenced to death — have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey’s and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

The kind of DNA evidence that can conclusively prove innocence or guilt is available only in a small fraction of cases, mainly rapes and rape-murders in which sperm is recovered. But these cases are the tip of the iceberg. Extrapolation from DNA and other exonerations suggests that the overall error rate in violent-crime prosecutions is probably much higher than the estimates of less than 1 percent offered by many criminal-justice officials.

In a stunning non-DNA case that shows how low law enforcement can go, a federal District judge in Boston ordered the government on July 26 to pay $102 million in damages to victims of the FBI’s "outrageous" role in framing four men for a 1965 gangland murder. The four spent a combined total of 109 years in prison. Two died there.

"FBI officials up the line allowed their employees to break laws, violate rules, and ruin lives," wrote the judge, Nancy Gertner. She found that the FBI had known all along that a mob hit man named Joseph Barboza was lying when he claimed he saw the four men kill a mobster named Edward Deegan. Barboza and the FBI protected the real killer, Vincent Flemmi, because Barboza and Flemmi were FBI informants.

Although that was decades ago, the FBI (like most police agencies) still insists on a policy — its virtual prohibition of tape-recording interviews — that allows agents to conceal or distort what suspects and witnesses say. The usual motive is not to frame innocent people but to fit evidence to preconceived (and often mistaken) theories of the case.

The FBI has defended its policy on the grounds that taping might deter suspects from talking and that jurors might be offended to hear police using lawful but deceptive interrogation tricks such as lying to suspects and feigning sympathy. But the first concern seems far-fetched in most cases and the second is illegitimate. Refusing to tape interviews hides important evidence from juries as well as lending itself to abuse.

Police and/or prosecutorial misconduct appears to figure in more than half of the 205 convictions that DNA has proven false. Specific reasons for those convictions are catalogued in "Judging Innocence," a study by Brandon Garrett, a law professor at the University of Virginia, slated for publication in January in the Columbia Law Review. Mistaken eyewitness identifications — often due to police subtly pointing witnesses toward the people the cops suspect — figured in 79 percent of these false convictions. Flawed or corrupt testimony by scientific "experts" (about hair, blood types, and the like) figured in 55 percent. False confessions, mostly by juvenile defendants, figured in 16 percent.

What percentage of the 2.2 million men and women locked up in state and federal prisons and local jails are actually innocent of the charged crimes? This is not knowable with any confidence. But we can extrapolate from a few data points.

Samuel Gross, a University of Michigan law professor, has calculated that 2.3 percent of all prisoners sentenced to death between 1973 and 1989 have been exonerated and freed. His research suggests that the vast majority in fact did not commit the crimes. And an unknown number of innocents have not been exonerated.

Does this suggest that we may have 50,000 innocent prisoners (2.3 percent times 2.2 million) in this country? Possibly, but not necessarily. Gross and Barbara O’Brien of Michigan State Law School stress in another forthcoming article that capital cases (and the DNA exonerations) are not representative of false convictions in general.

On the one hand, for example, the percentage of actual innocents may be higher among capital murder defendants — virtually all of whom go to trial — than among the 90 percent of violent-crime defendants whose cases end in plea bargains.

On the other hand, a much higher percentage of, say, robbery convictions than of capital murder convictions are based on unreliable eyewitness identifications. So perhaps the robbery error rate is much higher than 2.3 percent. And it’s clear that most people wrongly convicted of lesser crimes are far less likely to win exoneration than are death-row inmates (who get much better post-conviction legal representation) and rape convicts (when DNA evidence is available).

Gross and others have also found that a very disproportionate number of exonerated prisoners are black or Hispanic. Discrimination no doubt accounts for some of this. So does the especially high error rate in cross-racial identifications, which creates special risks for black men wrongly accused of raping or robbing white people.

But well-off white men are not exempt from wrongful prosecution. This was spectacularly illustrated by the fabricated rape charges against three innocent Duke lacrosse players. Durham District Attorney Mike Nifong falsely demonized them as rapists, racists, and "hooligans," thereby gaining enough black votes to win what had been an uphill election battle. Nifong (who is white) also rigged a photo-identification process to frame the three for a nonexistent crime, hid DNA proof of innocence, and lied to the public and the court for many months before North Carolina Attorney General Roy Cooper took over the case and declared the defendants innocent.

Nifong has been disbarred and still faces a contempt-of-court charge. But his richly deserved fate is almost unheard-of. Most state bars and judges have given passes even to prosecutors who have hidden or falsified evidence to put innocent men and women on death row.

The DNA exonerations have spurred reforms by some states, but most still use shockingly unreliable police practices.

The good news, according to the Innocence Project, is that 42 states and the District of Columbia now require that inmates be given access to any DNA evidence; 22 (plus D.C. and the federal government) require preservation of DNA evidence; and 22 (plus D.C. and the federal government) compensate victims of false convictions.

But only three states (and some cities) have adopted the reforms to eyewitness procedures — such as excluding officers who know which person is the suspect, among other safeguards — that experts say are necessary to prevent false identifications. And only the District of Columbia, nine states, and some 500 localities keep police honest by requiring them to tape interrogations.

The courts, meanwhile, have "performed miserably in ferreting out the innocent" convicts, as Adam Liptak observed in a July 23 New York Times column. The Garrett study shows that the Supreme Court refused to hear the appeals of 30 of the first 200 prisoners who were later exonerated and rejected the one appeal it did hear.

The justices, and Congress, have also made it difficult for state prisoners to seek relief in lower federal courts. Most recently, on June 15 the conservative high court majority slammed the door on a murder convict because his lawyer had filed his appeal three days late — on the mistaken advice of a federal District judge. This decision seems perverse, especially in an era of DNA exonerations when, as a Justice Department commission observed in 1999, "the strong presumption that verdicts are correct, one of the underpinnings of restrictions on post-conviction relief, has been weakened."

Indeed, so formidable are the procedural obstacles facing falsely convicted innocents that only 10 percent of the 205 DNA exonorees made their innocence the basis of their initial appeals — and none was successful. This reflects the appeals courts’ almost exclusive focus on whether the prosecutor or judge made procedural errors and almost complete deference to findings of guilt by juries and trial judges. They should defer less.

The post Opening Argument – Innocents in Prison appeared first on Stuart Taylor, Jr..

Justice Anthony Kennedy’s opinion for the majority gives six cogent-sounding reasons for this judgment:

1) The trend in state legislatures has been toward ending juvenile executions.

2) Only six states have executed someone convicted as a juvenile since 1989.

3) Juveniles are less calculating than adults and thus less likely to be deterred by fear of death.

4) Juveniles’ crimes tend to be less "morally reprehensible" and less indicative of "irretrievably depraved character" because they are less mature and have a less developed sense of moral responsibility.

5) Emphasizing the Court’s assertion three years ago that "in the end, our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment," Kennedy declares his personal view, joined by four others, that juvenile executions should be banned.

6) "The United States now stands alone in a world that has turned its face against the juvenile death penalty," with all other nations having officially ended the practice.

All of this is good enough to convince me that we should end juvenile executions. So why did four justices dissent in the case, Roper v. Simmons? Because they were right to oppose ending juvenile executions by judicial fiat. The dissenters shred each of the majority’s six arguments:

1) A trend that 20 of the 38 death-penalty states have declined to join is far from being the national "consensus" — the traditional measure of "evolving standards of decency" — that Kennedy claims it is. Indeed, just 16 years ago, the Court upheld the death penalty for 16- and 17-year-old murderers, in Stanford v. Kentucky. While four more state legislatures have ended juvenile executions since then, for a total of 18, that’s not even a majority of the 38, let alone a "consensus."

Kennedy pads his bogus "consensus" by adding to these 18 states the 12 others that have entirely abolished the death penalty. But none of the 12 suggested that juvenile killers should be ineligible for the maximum penalty faced by adult killers.

2) The number of juvenile executions has held steady or even gone up since Stanford. And their infrequency reflects only the facts that most murderers are adults and that capital juries are instructed to consider youth as a mitigating factor.

3) The defendant in this very case, Christopher Simmons, showed how calculating a juvenile killer can be. He told friends he wanted to murder someone; planned to break into a house, tie up his victim, and throw her off a bridge; and he assured accomplices that they "could get away with it" because they were juveniles — a prediction now partially validated by the Court. On entering his victim’s bedroom and recognizing her, Simmons bound and gagged her with duct tape, took her to a railroad bridge, tied her hands and feet with electrical wire, and threw her into the Meramec River.

4) As further evidence of his moral depravity, Simmons bragged to friends that he had killed "because the bitch seen my face." The defense lawyer, stressing that, under state law, Simmons was too young to drink, serve on a jury, or see certain movies, argued that he did not deserve death. The jury disagreed.

Some of the mental-health experts who successfully urged the Court to find that juveniles lack the moral-reasoning ability to be held responsible for murder have made inconsistent arguments in past cases. When the issue was whether minors should have access to an abortion without parental involvement, the American Psychological Association asserted that girls as young as 14 "develop abilities similar to adults in reasoning about moral dilemmas."

5) It is presumptuous and anti-democratic for five life-tenured lawyers to appoint themselves the nation’s moral conscience and to look inward — rather than to elected representatives, voters, juries, or the Constitution itself — to discern the nation’s "evolving standards of decency."

Especially when the justices’ own moral consciences are so malleable. The same Kennedy who authored Simmons had joined Scalia’s 1989 ruling that nothing in the Constitution forbids juvenile executions. As Scalia stresses, Kennedy’s explanation for this reversal is "not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed." This brand of "interpretation" mocks Alexander Hamilton’s injunction in Federalist 78 that the judiciary — the "least dangerous" branch — should be "bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them."

6) One key to understanding the Court’s reliance on international and foreign law, laid out in friend-of-the-court briefs by the European Union and several foreign countries, may be the justices’ summer sojourns to glittering international conferences. They may be embarrassed by their foreign friends’ concern that America seems so indifferent to world opinion — so barbaric, even.

I might be embarrassed too. But should the meaning of our Constitution be determined — and should democratic governance be set aside — by what Scalia calls "the subjective views of five members of this Court and like-minded foreigners"?

And if international standards are to be our guide, what of the facts that — by decree of the Supreme Court — the United States alone broadly bars prosecutors from using illegally seized evidence; is one of only six countries to allow abortion on demand until the fetus is viable; and is quite exceptional in requiring strict separation of church and state?

What of the fact that the United Nations Convention on the Rights of the Child, which the Court cites approvingly for its ban on executing juveniles, also bans sentencing them to life without parole — a penalty that all, or almost all, 50 states authorize and that Kennedy cited with approval. By the way, the United States has refused to ratify that convention, except to the extent that the Court has now implicitly arrogated the treaty-ratification power to itself.

The subjectivity of the justices’ "independent judgment" is also underscored by Kennedy’s side debate with Justice Sandra Day O’Connor’s separate dissent. She agrees with the majority’s interpretative method, its internationalist bent, and its 2002 precedent in Atkins v. Virginia (which she joined) banning execution of mentally retarded murderers.

But 16- and 17-year-old murderers should not enjoy the same constitutional protection, O’Connor asserts in Simmons, while suggesting that she would welcome a statutory ban on juvenile executions. Why? Because there is "continuing public support" for juvenile executions and because "at least some 17-year-olds" may deserve death. Kennedy, on the other hand, stresses that the impropriety of the juvenile death penalty "gained wide recognition earlier than the impropriety of executing the mentally retarded."

Scalia’s own "purely originalist approach" (as he describes it) has its problems, however. Scalia would uphold any punishment deemed constitutional at the time of the Framers, leaving it to elected officials to discern "evolving standards of decency."

That would make the Eighth Amendment a dead letter. When it was adopted, children as young as 7 could be executed, among other punishments now universally deemed barbaric.

So the Court must draw a line somewhere to designate how young is too young for the death penalty. In 1988, it drew a more defensible line, over Scalia’s dissent, in Thompson v. Oklahoma, holding that killers 15 years old and younger should not be executedBut in its impatience with 20 states’ current unwillingness to draw their own legal lines where it (or I) would like, the current Court majority has assumed the power to act essentially as a continuing constitutional convention. And not only in the death-penalty context.

"It seems inevitable," editorialized The New York Times, "that, one day, Americans will look back on this latest narrowing of the categories of people eligible for execution as another intermediate step toward the Court’s entire rejection of the death penalty."

Oh, good. I don’t like the death penalty, either. And if the voters in the 38 death-penalty states remain too benighted to do the right thing themselves, what standing do they have to second-guess the "evolving standards of decency" decreed by five moral guardians and the world’s greatest newspaper?

The post Opening Argument – The Court, And Foreign Friends, as Constitutional Convention appeared first on Stuart Taylor, Jr..

When State’s Attorney Douglas Gansler stepped before a gaggle of microphones in suburban Montgomery County, Md., last Friday, officials watching TV downtown at the Department of Justice seethed. Gansler, an ambitious Democrat who stressed that "Montgomery County was the community most affected" by the killing spree, announced that "within the next few hours" he would file six first-degree-murder charges against suspects John Allen Muhammad and John Lee Malvo. The Feds had asked Gansler to wait

When State’s Attorney Douglas Gansler stepped before a gaggle of microphones in suburban Montgomery County, Md., last Friday, officials watching TV downtown at the Department of Justice seethed. Gansler, an ambitious Democrat who stressed that "Montgomery County was the community most affected" by the killing spree, announced that "within the next few hours" he would file six first-degree-murder charges against suspects John Allen Muhammad and John Lee Malvo. The Feds had asked Gansler to wait while they sorted through the tricky issues of where to try the high-profile case first. Gansler was "jumping the gun," one official said.

Montgomery County and the Feds aren’t the only ones staking a claim: prosecutors in Virginia counties and Alabama also want a crack at the case. The turf wars are mo…

When State’s Attorney Douglas Gansler stepped before a gaggle of microphones in suburban Montgomery County, Md., last Friday, officials watching TV downtown at the Department of Justice seethed. Gansler, an ambitious Democrat who stressed that "Montgomery County was the community most affected" by the killing spree, announced that "within the next few hours" he would file six first-degree-murder charges against suspects John Allen Muhammad and John Lee Malvo. The Feds had asked Gansler to wait

When State’s Attorney Douglas Gansler stepped before a gaggle of microphones in suburban Montgomery County, Md., last Friday, officials watching TV downtown at the Department of Justice seethed. Gansler, an ambitious Democrat who stressed that "Montgomery County was the community most affected" by the killing spree, announced that "within the next few hours" he would file six first-degree-murder charges against suspects John Allen Muhammad and John Lee Malvo. The Feds had asked Gansler to wait while they sorted through the tricky issues of where to try the high-profile case first. Gansler was "jumping the gun," one official said.

Montgomery County and the Feds aren’t the only ones staking a claim: prosecutors in Virginia counties and Alabama also want a crack at the case. The turf wars are more than political wrangling. At the heart of the debate is the emotionally charged issue of the death penalty–and the even thornier question of juvenile executions. If the first, highly publicized trial doesn’t send one or both suspects to death row, it could disappoint a public eager for strong and swift justice.

Who gets the first trial may depend on who can make the most compelling case–and on who can best navigate the maze of death-penalty laws. Both Maryland and federal laws permit the death penalty, but only for adults. Maryland has put only three people to death since 1976. And the departing governor has imposed a moratorium on executions, though it could be lifted soon. Virginia, with 86 executions since 1976, and Alabama, with 23, both have stronger death-penalty credentials. They’re willing to send juveniles to the death chamber, making 17-year-old Malvo eligible, too. That could feed an ongoing debate over whether minors should be executed. Four of the more liberal Supreme Court justices recently denounced the practice as "shameful." And Congress and 28 states have already abolished the death penalty for juvenile crimes.

That could be one reason to let Montgomery County go first. Though the threat of execution could spur Malvo to give valuable evidence against Muhammad, abandoning that option could ease any qualms jurors might have about convicting young Malvo. Gansler has said he plans to seek execution for Muhammad.

Still, starting with Maryland is not a perfect solution. Some prosecutors say the state’s death penalty applies in multiple-murder cases only if they are committed at one time. Gansler argues that the spree of four murders over two and a half hours on Oct. 3 could count as a single incident. That issue, however, could pose problems in Maryland’s liberal appellate courts. Justice officials stress that federal court is the only place where all 13 sniper shootings could be prosecuted together.

But murder isn’t ordinarily a federal crime. The Feds would have to charge the suspects with attempted extortion of $10 million under the Hobbs Act–hardly as compelling to a jury as the killings themselves. "You really have to twist this to make this a federal case," says former deputy attorney general Eric Holder Jr. If the Feds did go first, a Virginia double-jeopardy law could bar state and federal trials for the same crime. And if Virginia or Alabama went first, each county could try only the single murder that occurred there–not as strong a case as Montgomery County’s six killings. The county, which bore the brunt of the snipers’ terror, also housed the massive investigation. Concerns about the death penalty shouldn’t keep Maryland from taking the case first.

The post The Death-Penalty Maze appeared first on Stuart Taylor, Jr..

The 20-year-old Walker not only joined and fought for the Taliban, he also joined Al Qaeda-which has long boasted of being in the business of murdering Americans-and (according to Newsweek) trained in its camps in Afghanistan. On at least one occasion, he met with Osama bin Laden. Walker told a CNN contributor in a videotaped December 2 hospital interview that he had gone to the Taliban front lines with Ansar, a group of non-Afghan fighters "funded by Osama bin Laden," and that the jihad was "exactly what I thought it would be" and "definitely" a good cause. He told Newsweek that he "supported" the September 11 attacks. And in an e-mail exchange with his father, he defended Al Qaeda’s October 2000 bombing of the destroyer USS Cole in Yemen, which killed 17 sailors. In short, he knowingly allied himself with the world’s most deadly anti-American terrorists, and he continued fighting eagerly for them after September 11, after the U.S. went to war against the Taliban and Al Qaeda, and right up until his surrender.

Surely such a man-not a kid, any more than the thousands of ghetto youths the same age or younger who pack our prisons-must be prosecutable for something. But for what, exactly? More than five weeks since Walker (now being held on a Navy warship) was taken into custody in Afghanistan, Bush Administration lawyers still seem to be struggling with that question. You can hardly blame them.

The seldom-used treason statute (18 U.S.C. 2381) provides penalties ranging from five years to death for anyone who, "owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort." Walker surely adhered to this nation’s enemies and gave them enough aid and comfort to qualify as a traitor. Less clear is whether, as a legal matter, fighting for the Taliban against the Northern Alliance would qualify as treason if Walker did not know that American forces were also on the ground. And it’s not clear whether Walker did know that.

Even if a treason prosecution could clear this hurdle, the Constitution specifies that "no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Two witnesses to an overt act of treason by Walker may be impossible to find. And while he has made incriminating statements to reporters and government interrogators, he seems unlikely to confess in open court unless he strikes a plea bargain.

Walker might have another defense against a treason charge because of the peculiar interaction of the treason statute and another law (8 U.S.C. 1481 (a)(3)), which provides that "entering, or serving in, the armed forces of a foreign state … engaged in hostilities against the United States" with intent to renounce one’s citizenship automatically has that effect. He could claim that he had ceased to be a U.S. citizen and thus ceased "owing allegiance" to the United States by joining the Taliban and Al Qaeda and staying with them after the war began.

At first blush, that defense might seem a two-edged sword: If Walker forfeited his U.S. citizenship, that would remove the most obvious impediment to trying him under President Bush’s order allowing for trials by special military tribunals of noncitizen terrorists accused of war crimes. But there is no public evidence that Walker committed war crimes.

Aware of the pitfalls of a treason prosecution, Administration lawyers have considered holding an ordinary military court-martial of Walker under a section of the Uniform Code of Military Justice (10 U.S.C. 904) subjecting to a possible death penalty "any person" who "aids, or attempts to aid, the enemy" in specified ways, including "hold[ing] any intercourse with the enemy."

No American civilian has been court-martialed under this aiding-the-enemy provision since the Civil War, when two Missouri women were convicted of supplying Confederate soldiers with "victuals." While the Administration probably has the power to court-martial Walker, doing so might look like an effort to circumvent the stringent constitutional and statutory requirements for proving treason.

And in any event, a death sentence would be inappropriate. The reasons begin with a line of Supreme Court cases suggesting that under "evolving standards of decency," capital punishment should ordinarily be reserved for defendants implicated in especially heinous murders or equally grave crimes. In the 1977 case Coker v. Georgia, for example, the Court ruled that a man could not be sentenced to death for rape, because the penalty was so disproportionate to the crime as to amount to cruel and unusual punishment. A subsequent decision in 1987, Tison v. Arizona, held that defendants who acted with "reckless disregard for human life" when they broke out of prison with the help of heavily armed accomplices could be sentenced to death for murders by the accomplices. And the current Court would probably uphold the death penalty for treason. But not every act of treason involves murder. And nobody has been executed in this country in more than 30 years for a crime that did not involve murder. Nobody should be, in my view.

Was Walker involved in murders? The publicly available evidence does not make out a strong case. By fighting for the Taliban, he was trying to kill Northern Alliance soldiers in military combat. But ordinary military combat is not murder. And there is no public evidence implicating Walker in the November 25 killing of CIA agent Johnny Michael Spann-shortly after Spann’s effort to interrogate the mute Walker-in the bloody uprising by Walker’s fellow prisoners at a fort near Mazar-i-Sharif. Walker said on December 2, in the videotaped interview later aired by CNN, that "I was in the basement" at the time, that "I didn’t see anything that went on," and that the uprising "was all a mistake of a handful of people" because it violated the prisoners’ terms of surrender. Unless there is other evidence contradicting this account, the traitor Walker could not plausibly be prosecuted for the killing of the hero Spann.

An extremely aggressive prosecutor might claim that because Walker joined a global conspiracy to murder Americans by joining Al Qaeda, Walker (and every other Al Qaeda member) can be prosecuted for the September 11 murders under a 1946 Supreme Court precedent, Pinkerton v. U.S., which held that every member of a conspiracy can be prosecuted for every crime committed by any other member in furtherance of the conspiracy. But Walker told CNN (plausibly) that he had turned down an opportunity to enter more-intensive terrorist training, choosing instead to go to the Taliban front lines. There is no public evidence that he had any advance knowledge of the September 11 attacks. And the so-called Pinkerton rule has never been stretched so far as to charge a member of a large, sprawling criminal organization (such as the Mafia) for every crime committed by anyone else in the organization.

What Walker probably deserves-assuming for the moment that we have seen the worst of the evidence against him-is a prison term under a federal law (18 U.S.C. 2339A and B) imposing up to 15 years, on each count, for providing "material support" to terrorists. While this law previously covered only activities inside the United States, it was amended in late October by the Administration’s anti-terrorism package to cover activities abroad, too.

Walker’s lawyer could argue that merely joining Al Qaeda and the Taliban did not amount to "material support or resources." But one kind of "material support" identified by the statute is providing "personnel." And in this case, Walker’s act of providing one fighter-himself-may be enough to convict him. A stretch? Yes. But the alternative might be to hold that not only John Walker but also other jihadists who join and actively support the Al Qaeda conspiracy to murder Americans commit no crime unless and until they are personally involved in the killing. And if the law said that, then the law would be an ass.

The post Legal Affairs – Send the Traitor to Prison, but Don’t Execute Him appeared first on Stuart Taylor, Jr..

Timothy McVeigh–an unrepentant, confessed mass murderer whose guilt was utterly clear–deserved the death penalty if anyone ever did, and an overwhelming majority of Americans favored his execution. But according to a recent Gallup poll, support for capital punishment as an institution has slipped from a peak of 80 percent in 1994 to 65 percent this year, in part, no doubt, because falling crime rates have eased public fears. When pollsters specify life imprisonment without parole as the alternative, support for the death penalty drops to 52 percent. Most respondents do not believe that the death penalty deters murders-which is “the only reason to be for it,” President Bush said last year. “I don’t think you should support the death penalty to seek revenge,” he added.

Bush’s comments may have dismayed those whose convictions call for executing the worst killers “in order to pay them back,” in the words of Walter Berns, a resident scholar at the American Enterprise Institute. Meanwhile, equally resolved are religious objectors and others whose morality rejects all executions as immoral and “uniquely degrading to human dignity,” in the words of the late Justice William J. Brennan, Jr.

Between these warring groups are millions whose attitudes can be swayed by evidence of the death penalty’s actual impact on violent crimes. Does the death penalty save innocent lives? Does an unacceptable risk of executing innocent, mistakenly convicted defendants accompany it? Does the legal process discriminate against racial minorities and poor people when choosing which murderers to send to death row? Should we be in the company of most European countries–where the death penalty has been abolished and is widely seen as a barbaric blot on America’s human rights record–or of autocracies like China, Iraq, and Iran, where executions are still common?

The conventional wisdom among most criminologists has long been that there is no evidence that the death penalty deters murders. This has seemed especially plausible in recent decades, when so tiny a percentage of murderers have been executed that a calculating killer might imagine that the risk of being put to death was fairly remote.

But a new statistical study by three Emory University economists of most of the 717 executions over the past 25 years challenges the conventional wisdom with a sophisticated argument that the numbers show that “each execution results, on average, in 18 fewer murders,” give or take 10. Meanwhile, the pace of executions–especially in places like Harris County, Texas (home to the city of Houston)–has quickened to the point that a killer might well see execution as a genuine risk. (McVeigh is a little different; his execution could increase the risk of future carnage because many terrorists crave martyrdom.)

Any doubt about deterrence, death penalty supporters argue, should be resolved in favor of the innocent lives that might be saved. But what about mistakenly executing innocent defendants? Based on new evidence that either proved their innocence or cast doubt on their guilt, some 95 inmates have been released from death row since 1973. Republican Gov. George Ryan of Illinois declared a moratorium on executions 16 months ago because of what he called his state’s “shameful record of convicting innocent people and putting them on death row.”

Death penalty supporters respond that such cases show the system correcting its own errors and stress that nobody has proved the innocence of any of the 717 people executed since 1976. True, but misleading: After an execution, the exhausted defense lawyers and others typically have little remaining incentive to dig up evidence of innocence and when they do, they often face resistance from state officials who are more interested in protecting themselves than in the truth. Prosecutors in Virginia, for example, are fighting–so far successfully–an effort by newspapers and others to make DNA evidence available for tests that could conclusively prove the innocence (or guilt) of a coal miner named Roger Keith Coleman, who insisted on his innocence up until his 1992 electrocution for the rape-murder of his sister-in-law.

The surest way to increase whatever deterrent effect the death penalty may have–executing a much higher percentage of convicted killers, and doing so much closer to the time of sentencing–would also, of course, produce a commensurate increase in the risk of executing innocent people.

Meanwhile, many defendants who go to trial for their lives are represented by lawyers who are inexperienced, unprepared, overburdened, paid too little to investigate the facts, and even, in some cases, drunk or asleep during portions of their trials. And while the FBI’s failure to turn over more than 4,500 relevant documents to McVeigh’s defense lawyers cast no doubt on his guilt, it demonstrated vividly the government’s penchant for fouling up even the most momentous of cases and fed suspicions that worse errors and abuses may be common in cases far from the media spotlight.

Then there are the critics who see the death-sentencing process as tainted by racism. They scoff at Attorney General John Ashcroft’s declaration last week that a long-awaited Justice Department report shows “no evidence of racial bias in the administration of the federal death penalty.” The critics stress that three-fourths of those charged by federal prosecutors with capital crimes have been minorities and that only two whites remain among the 20 men under federal death sentence–one of whom, Juan Raul Garza, is to be executed on June 19 for three drug-related murders. And while studies of the 38 death-penalty states show that white killers are as likely as black killers to be sentenced to death, those who kill white victims are far more likely to end up on death row than killers of blacks.

All in all, enough doubts have been raised to give new momentum to proposals designed to make the system more foolproof and fair. These include a bill in Congress called the Innocence Protection Act, which would encourage states to provide better lawyers for capital defendants and to give death row inmates access to any DNA evidence that might exonerate them. Most or all death-penalty states are considering similar proposals. Some are also debating whether to bar execution of retarded defendants. (The Supreme Court has agreed to decide next year whether such executions are unconstitutional.) And even some death penalty supporters, such as Republican Gov. Frank Keating of Oklahoma, would now require proof of guilt to a “moral certainty”–a higher standard than “beyond a reasonable doubt”–for imposition of the death sentence.

The movement to abolish the death penalty still seems a long way from winning majority support. But the push to reform it may just be beginning.

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There are two untidy little problems here. The first, of course, is the disclosure just six days before McVeigh’s now-postponed May 16 appointment with death that the FBI had failed-most likely through incompetence, not design-to turn over to his attorneys more than 3,000 pages of possibly relevant documents. The second, less noticed, problem is that executing McVeigh, with the attendant media circus, seems more likely to provoke future carnage than to deter it: It risks lighting some other potential terrorist’s psycho-pathological fuse, just as the 1993 Waco disaster lit the fuse that led to the bombing in Oklahoma City two years later.

With luck, McVeigh’s execution-if and when it comes-will not be avenged. But can we be confident of that, after watching him glory in the fame that mass murder has brought, to the point of suggesting that his execution be televised? And after seeing the Middle East convulsed by suicide bombers craving martyrdom? Terrorists "are not deterred by the threat of severe penalties," in the words of a 1976 book by Frederick J. Hacker. "In fact, they are attracted by dangerous risks and the expectation of a heroic death."

This is no small consideration. President Bush and former Vice President Al Gore both justified the death penalty in their October 18 debate exclusively on the ground that it saves innocent lives by deterring killings. "It’s the only reason to be for it," Bush asserted. "I don’t think you should support the death penalty to seek revenge. I don’t think that’s right. I think the reason to support the death penalty is because it saves other people’s lives."

If executing McVeigh could have the opposite effect, and could endanger innocent lives, why take a chance? Why not lock him up forever instead, throw away the key, and keep him out of sight and out of mind?

Most capital murderers are not terrorists, of course. But most Americans now believe that the death penalty does not deter murders. So do more than 80 percent of leading criminologists, according to a 1996 survey. Indeed, some claim-not all that convincingly-that routine executions provoke more homicides than they prevent, through what academicians call the "brutalization effect" of teaching that it is correct and appropriate to kill those who have gravely offended us.

Exemplifying the journalistic conventional wisdom on deterrence is Washington Post columnist Richard Cohen, who wrote in September: "Over the years, crime figures have been analyzed and re-analyzed, and always the conclusion is the same: Capital punishment fails to deter." Come to think of it, my own column seems to have asserted last year that "there is no convincing evidence" that the death penalty deters murderers-at least, not "at the current pace of executions."

But now come three Emory University economists with a major study that contradicts the findings of most other academicians (not to mention Cohen and me) by concluding: "Our results suggest that capital punishment has a strong deterrent effect…. In particular, each execution results, on average, in 18 fewer murders-with a margin of error of plus and minus 10."

Uh-oh. The multiple-regression analyses underlying this conclusion are way over this columnist’s head. But the authors of the study (economics department Chairman Hashem Dezhbakhsh and professors Paul H. Rubin and Joanna M. Shepherd) have respectable professional credentials. And their analysis, published on the Internet in February, is based on more-recent and detailed data and (it appears) more- sophisticated statistical techniques than any previous study.

Here’s a more accessible statistical tidbit noted by Dudley Sharp, resource director of Justice for All, a Texas-based, pro-death-penalty criminal justice reform group: "The major U.S. jurisdiction with the most executions is Harris County [Houston, Texas], which has seen a 73 percent decrease in murder rates since resuming executions in 1982-possibly the largest reduction for a major metropolitan area since that time."

What would folks such as Richard Cohen say if they believed that each execution saves 18 lives-or, as the authors claim in acknowledging their margin of error, at least eight lives, and as many as 28? Cohen has told us already: "It would be one thing if the death penalty really was a deterrent. Then opponents like me would be in a fix. I’d still have the same moral qualms, but I’d be hard-pressed to argue that we ought to suffer a high murder rate just to make a point about the value of human life."

My sentiments exactly. (But should such logic lead us to the ironic extreme of sparing McVeigh to avoid provoking imitators, while executing lifers who kill fellow prisoners?)

It’s true, of course, that most homicides are crimes of passion or committed by mentally unstable people, impulsive teenagers, and others who are probably not deterrable. But the question is not whether most potential killers can be deterred. The question is whether any can be. Common sense says, yes.

All criminal penalties are based on the incontestable theory that most (or at least many) criminals are somewhat rational actors who try so hard not to get caught because they would prefer not to be imprisoned. And most are even keener about staying alive than about avoiding incarceration. Who could argue with a straight face that robbers pondering whether to kill the witnesses would be indifferent-in every case-to the expectation that, if caught, they would be tried, convicted, sentenced, and executed within (say) 18 months?

We do not have such a regime, of course. Nor should we, given how dramatically it would increase the risk of executing innocent defendants. These days, only about one in every 150 killers-and perhaps one in every 30 capital murderers-is executed, often after more than 10 years of judicial appeals. The long odds and delays attenuate the deterrent effect, but seem unlikely to eliminate it, especially given the push by states such as Texas to make execution for capital murder more swift and certain.

Statistical studies and common sense aside, it’s undeniable that the death penalty saves some lives: those of the prison guards and other inmates who would otherwise be killed by murderers serving life sentences without parole, and of people who might otherwise encounter murderous escapees.

So those of us who lean against the death penalty must confront the very real possibility that abolishing it could lead to the violent deaths of unknown numbers of innocent men, women, and children. And those who are still skeptical that the death penalty deters any killings must also confront the risk-benefit calculus suggested by political scientist John McAdams of Marquette University: "If we execute murderers, and there is, in fact, no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call."

It’s still a tough call to me-certainly for as long as so many states use such a grotesquely unfair and error-riddled process to select defendants for death. And even if the process were more fair, the death penalty would still involve heavy costs: the unavoidable risk of executing the innocent; the racial divisiveness of a system regarded (correctly or incorrectly) by so many African-Americans as riddled with racism; the affront to many Europeans and others who see America’s apparent enthusiasm for executions as a barbaric anachronism; even the evidence suggesting that executing capital murderers costs more than locking them up for life.

How to weigh such costs against the possibility of saving innocent lives? The answer comes easily to believers in retribution, such as the late Mike Royko: "Anything less than the death penalty [for murder] is an insult to the victim and society. It says … that we don’t value the victim’s life enough to punish the killer fully." And to believers in the immorality of the death penalty, such as the late Justice William J. Brennan Jr.: "The deliberate extinguishment of human life by the state is uniquely degrading to human dignity."

But for me, such moral absolutes tend to collapse into empirical questions such as how many innocent lives might be saved. I guess it’s time to learn multiple-regression analysis, or to find an unbiased econometrics translator. Any volunteers?

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Tough on crime? You bet. Helping defendants and prisoners who can prove their innocence would result in more arrests of real criminals. And making trials more fair would expedite the executions of those condemned killers whose guilt is clear, by speeding up the seemingly endless appellate process that now overturns a staggering percentage of all death sentences.

In the words of columnist George F. Will-a pro-death-penalty conservative-"many innocent people are in prison, and some innocent people have been executed," due to "appalling miscarriages of justice" and other "demonstrable, multiplying failures in the criminal justice system." He should tell President Bush, who seemed alarmingly comfortable with the kangaroo-court style of justice that produced the executions of more than 150 defendants-at least two of whom may well have been innocent-on his watch as governor of Texas. Nationwide, some 95 inmates since 1973 have been released from death rows based on new evidence that either proved their innocence or cast grave doubt on their guilt.

Nobody knows how many innocent defendants have been executed or remain in prison. For years, the Supreme Court, Congress, and the Clinton Administration seemed not to care. Congress in 1994 added death sentences for more than 50 federal crimes. Two years later, it made even more daunting the maze of technical obstacles that the Court’s conservatives had put in the paths of prisoners seeking federal court (habeas corpus) review of state convictions and death sentences. Congress also defunded the Death Penalty Resource Centers, which had helped inmates with appeals. This after the Justices had already (in 1995) barred federal courts from hearing death row appeals based on newly discovered evidence, unless the "new facts unquestionably establish (the prisoner’s) innocence." In other words, if a death row inmate can only prove that he is probably innocent, the state is free to execute him.

But lately, the political landscape has changed. The reason "can be summarized in three letters: DNA," Ronald Weich, a former Senate staffer who is now a partner in the Washington office of Zuckerman Spaeder LLP, writes in the April issue of The Champion, a trade publication for criminal defense lawyers. "While DNA technology has helped the police catch criminals, it has also exposed a national crisis in the administration of capital punishment, by enabling investigators to exonerate defendants" whose DNA did not match the DNA in the blood, semen, or hair at the crime scene. Meanwhile, public support for the death penalty has dropped from 80 percent in 1994 to 66 percent now; more than half of poll respondents are open to a national moratorium on executions until the most-glaring questions about the fairness of the system are resolved; and some 90 percent support DNA testing for all who might thereby prove their innocence.

Although DNA evidence is available in a relatively small percentage of cases (a bullet leaves no DNA), it has freed enough wrongly convicted prisoners to alert more and more people to the unreliability of much eyewitness testimony, jail-house snitches, and police officers who manufacture (or suppress) evidence to bolster their often-mistaken hunches. "There were always guys sitting around in prison saying, `Hey, I was framed,’ and who believed them?" observes Weich. "Now, there’s scientific evidence."

Enter Sen. Patrick Leahy, D-Vt., and Rep. William D. Delahunt, D-Mass., both former prosecutors who oppose the death penalty. Leahy crafted the Innocence Protection Act carefully enough last year to win the co-sponsorship of pro-death-penalty Democrats such as Joe Lieberman of Connecticut and Republicans such as Gordon H. Smith of Oregon. And Delahunt has rounded up some 175 co-sponsors in the House, including Ray LaHood of Illinois and 19 other Republicans.

Title I of the bill would require the federal government to preserve all possibly relevant DNA evidence and to provide postconviction DNA testing for all federal prisoners (both on and off death row) who can show that it might prove their innocence. The bill would also provide financial incentives for states to do the same. And it would require the states to do so in death penalty cases. Some states are already moving in this direction.

On April 16, U.S. District Judge Albert Bryan Jr., of Alexandria, Va., held that the Constitution requires Virginia to allow the DNA testing sought by a prisoner challenging a 1990 rape conviction. But this novel decision may not survive on appeal. And prosecutors-who don’t like seeing their mistakes exposed-will continue to thwart prisoners’ requests for DNA testing unless Congress acts.

Title II would go much farther, by attacking the biggest cause of unfair trials and erroneous convictions: incompetent court-appointed defense lawyers. It would establish a national commission to formulate minimum standards for representation in capital cases, including adequate compensation, trial experience, and a centralized, independent appointing authority in each state. To induce states to comply, the bill uses both the carrot of financial incentives and the stick of subjecting any that fail to meet the minimum standards to more-skeptical federal court review than current law provides.

This ingenious provision would be a far more sensible response to complaints about endless, repetitive death row apppeals than the procrustean cutbacks on appeal rights that we have seen in the past. Instead of proceeding on the demonstrably false assumption that state courts can be trusted to avoid unwarranted executions, the Innocence Protection Act would calibrate the degree of federal court scrutiny to the willingness of states to provide competent defense counsel.

This provision rankles some states’ rights conservatives. But those who have come to appreciate the case for federal oversight of state courts in matters of dimpled chads should reconsider the case for federal oversight of state courts in matters of life and death. If it was a good thing for the U.S. Supreme Court to reverse the unfair state court recount in Bush vs. Gore, why would it be a bad thing for federal courts to reverse the death sentences of people condemned in demonstrably unfair state court trials?

It is clear that in many death-penalty states, court-appointed defense lawyers are woefully inexperienced, underpaid, and so incompetent or pressed for time that they fail to discover or highlight evidence that could exonerate their clients. Horror stories abound. Three defense lawyers in Houston slept through major portions of their clients’ capital trials. The state courts’ response? "The Constitution doesn’t say the lawyer has to be awake," one of the trial judges remarked. Then the highest criminal appeals court in Texas upheld all three convictions. (One is now before a federal appellate court.)

"I have seen four cases in Georgia in which counsel referred to their clients with a racial slur," recalled Stephen B. Bright, director of the Atlanta-based Southern Center for Human Rights, in congressional testimony last year. "I had a case in Alabama in which my client was represented by a lawyer so drunk that her trial had to be suspended for a day, and the lawyer sent to jail to sober up…. I have seen case after case in which the defense lawyer for a person facing the death penalty was denied an investigator and funds for expert assistance."

A single-minded advocate of making sure that no criminal goes unpunished might object that good defense lawyers are a bad thing because they will sometimes fool jurors into letting clearly guilty defendants off the hook. True. (O.J. Simpson comes to mind.) Any reform to protect innocent defendants will benefit some guilty defendants as well. But this one would also lead to the apprehensions of some criminals (those who go free every time an innocent defendant is convicted) and expedite the punishments of others (by making their convictions appeal-proof).

More fundamentally, the bedrock principle of Anglo-American justice is that it is better "that many guilty persons should escape unpunished than one innocent should suffer," as John Adams put it. Does Congress still believe that? Does President Bush? We’ll see.

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